Offscript Obama Brags: I Took Action to Change the Law

Obama admits to crowd: Yes, I changed the law.

Obama traveled to Chicago Tueday night to attempt to sell his executive order halting deportations for the illegal alien parents of children born in the United States. About 20 minutes into his speech, three women began to show “Stop Deportations Now”. One went so far as to claim that Obama’s assertion that his immigration policies are focused on deporting felons, not families, “a lie.” Another said it’s “not just Republicans” who have called undocumented immigrants felons.

Taking on the hecklers who’ve been interrupting his speeches lately, President Barack Obama argued back Tuesday with a point-by-point rebuttal of their arguments and suggested they “get the facts.”

A heckler interrupted Obama last Friday in Las Vegas, where he discussed immigration the day after outlining the changes in a nationally televised prime-time address.

Obama, who doesn’t like being challenged, went off script and off the teleprompter and may have clarified his Executive Order in a way that he and his administration have been denying from its inception.

Isn’t this an admission against interest? Barack Obama has spent the past several days insisting that his changes in enforcement of immigration law and regulation is entirely constitutional, since it doesn’t actually change or conflict with statute. It only took a heckler in a crowd last night to get Obama to brag that he “changed the law” — a process which the supposed Constitutional law scholar would know is impossible without Congress:

“Don’t just start yelling, young ladies,” Obama said as multiple women stood up to demand that Obama stop deporting people.

“I let you holler,” he said as they continued shouting. “You’ve got to listen to me too.”

Obama said that the protesters were right about a lot of illegal immigrants getting deported but that he was acting to change it.

“What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

Just to be clear, executive action — whether through formal EOs or other kinds of directives — cannot “change the law.” They can only act as guidelines on how to act within the law. Any change to statute has to originate in Congress through passage of a bill, and then signed by the President to take effect. This, in fact, is exactly what Republicans have accused Obama of attempting — a change in statute by executive edict, a move that would be unconstitutional and illegitimate. Anyone who has passed a high-school civics class understands that process and that restriction on power.

Nor did this appear to be a simple case of pulling the wrong word. The once-celebrated constitutional scholar actually made the case twice that he had changed the law in response to the heckling. The Hill captured Obama’s continued argument,emphases mine:

“You have been deporting families,” a heckler yelled. The president urged the demonstrator to stop shouting before he fired back.

“What you’re not paying attention to is the fact that I just took an action to change the law, so that’s point No. 1,” Obama said, his words echoing to 1,000 attendees. “Point No. 2, the waythe change in the law works is that we’re reprioritizing how we enforce our immigration laws generally.”

All of this came after insisting on many occasions that he didn’t have the authority under the U.S. Constitution, to make such changes, it would appear that he knows he doesn’t have it and he doesn’t care, he’s going to do it anyway. This is what has prompted the accusations of a lawless presidency.

“This notion that somehow I can just change the laws unilaterally is just not true,” Obama said at a Hispanic Roundtable meeting in the White House in 2011. “We are doing everything we can administratively.” Obama said similar things several times since then, and on Nov. 18, just two days before Obama announced his action, White House spokesman Josh Earnest pointed to the “large number of cases in which the president has said, ‘I’m not an emperor, I’m not a king, and I can’t change the law.’ “

If Obama ever finds himself in a court of law, he would surely be advised to invoke the Fifth Amendment. He is prone to contradiction and tends to be a good witness against himself.

The president’s executive action to legalize illegals by nullifying existing law, constitutes a stunning abuse of office: usurping the power of Congress, while abdicating his duty to uphold and enforce the laws. Here are three ways this is happening:

1. Distorting Prosecutorial Discretion

President Obama claims he is entitled to overhaul immigration laws in the name of “prosecutorial discretion.” It is one of those wonderfully fungible phrases in the law. Elastic because it is vague and ambiguous. Useful because it can be easily abused. Mr. Obama has appropriated this doctrine to argue he has near boundless discretion to amend, revise, waive or suspend the execution of immigration laws. As chief executive, he is empowering himself to decide what laws may be enforced or ignored and what persons may come or go across our southern border irrespective of what the law actually states.

In past decisions, the U.S. Supreme Court has cautioned the executive branch that its prosecutorial discretion, while broad, is not “unfettered.” It is subject to restrictions. The doctrine may not be used to adopt a sweeping policy of non-enforcement of the law. It applies only to decisions not to prosecute or expel specificindividuals or smallgroups of people, typically for exigent reasons like war, civil unrest or political persecution.

By contrast, President Obama is bestowing a wholesale, blanket amnesty for an entire class of nearly 5 million people. He is doing so not for the reasons allowed by law, but for purposes that appear to be purely political. This is a flagrant abuse of prosecutorial discretion. His expansive action exceeds his authority in ways that none of his predecessors ever envisioned. And it is a radical departure from any of the executive actions issued by previous presidents.

It is true that President Ronald Reagan utilized executive action in 1987 to grant a limited deportation reprieve to certain spouses and young children of immigrants. But his action was a logical and direct extension of, not a departure from, an existing amnesty law Congress had already passed. His exemption and a subsequent extension by his successor, President George H. W. Bush, were later incorporated into a new law passed by Congress. The point is instructive. The actions by Reagan and Bush are not a supporting precedent for Mr. Obama, but an important limiting principle of presidential authority.

However, President Obama has commandeered this elastic doctrine of prosecutorial discretion and stretched or manipulated it beyond all recognition and reason. It has become his political Gumby toy with which he exerts his will whenever he fails to get his way with Congress. He contorts the word “discretion” to adopt a capacious policy — his own policy — to ban full enforcement of a duly enacted immigration statute. He treats the doctrine as a magical incantation shielding his arbitrariness.

2. Usurping Legislative Authority

Our Constitution clearly delineates a separation of powers. Congress is vested with writing laws and the President is charged with executing those laws. This is especially true when it comes to immigration.

At the end of the 19th century, the Supreme Court declared that Congress had “plenary power” (meaning full and complete) to regulate immigration. Derived from Article 1, Section 8 of the Constitution, the doctrine is based on the concept that immigration is a question of national sovereignty, relating to a nation’s right to define its own borders and restrict entrance therein. As the high court observed, “Over no conceivable subject is the legislative power of Congress more complete.”

Yet President Obama has decided to usurp this power by unilateral directive, unconstrained by established checks and balances. In so doing, he is granting himself extra-constitutional authority and upsetting the carefully balanced separation of powers. He is also subverting the nucleus of our constitutional design: the rule of law.

3. Breaching His Sworn Duty

President Obama’s decision that existing laws shall not be enforced against some 5 million illegal immigrants violates his sworn constitutional duty. Article II, Section 3 requires that the President “shall take Care that the Laws be faithfully executed.” Nowhere is it written that the chief executive is granted the latitude to pick and choose which laws he wants to enforce. He cannot ignore or nullify laws he does not like because the constitution gives him no power not to execute laws. To infer such latitude would invite an authoritarian rule anathema to our founding fathers’ vision. President Obama admitted as much when he said, “The fact of the matter is, there are laws on the books that I have to enforce.” He was specifically talking about immigration laws.

In 1996, Congress passed a law which requires federal immigration agents to deport illegal immigrants, with few exceptions. The statutory language is mandatory. Thus, whatever prosecutorial discretion which may have existed previously, was specifically eliminated by that legislative act. Yet, the President is now, in effect, ordering those agents to break the law. He cannot, on his own, engage in a de facto repeal of this law by executive action. To do so would be, quite simply, lawlessness and a dereliction of his duty.

If President Obama can refuse to enforce a valid federal law affecting millions of people, are there any limits to his powers? After all, he has frequently threatened, “Where Congress won’t act, I will.” What is to stop him from rewriting other laws with which he disagrees? Or to act where Congress has declined or refused to act? Can he abolish certain tax laws because Congress chooses to keep them? Can he banish all sources of energy except renewables to advance his agenda on climate change? If so, why even have a legislative branch of government? What’s the point of a Constitution which enumerates and circumscribes powers and duties?